September 09, 2008

Mr. Berg's Standing Problem

(Note: Berg's complaint has been dismissed, but he is appealing in both the Third Circuit and the Supreme Court. See here for current status of his appeals.)

9/24 Update:As previously noted,

"An Aside: It bears mentioning that Mr. Berg has a "standing" problem. The upshot is that in order to bring a complaint on constitutional grounds, the plaintiff must have "standing" to sue, which means that s|he must allege an "injury in fact" that bears a relation to the defendant's conduct, and for which a judicial decision will address the injury. Courts have consistently held that voters do not have standing to sue on the grounds that a candidate is ineligible for the position for which s|he is running."

First, as expected, Sen. Obama and the DNC filed a motion to dismiss Berg's complaint today. The motion is not yet avilable on Justia, but we expect it to be uploaded there shortly. In the meantime, America's Right has a good summary and a link to a copy of the motion here.

In short, Sen. Obama and the DNC allege that under well-settled precedent, Berg lacks standing to sue, for the same reaons that the court in Hollander v. McCain dismissed the case challenging McCain's eligilbility earlier this year (discussed below).

2. Recent Cases Addressing the Same Issue

Second, we were informed that another federal court also has considered this issue, in another case brought to challenge Senator McCain's qualifications for the presidency. We are revising this post to include information from both of those cases.

Robinson v. Sec'y of State et al, C 08-03836 WHA (N.D. Ca. D.Ct.)

In Robinson, plaintiff sued in his capacity as Presidential Elector and Chairperson-Elect of the American Independent Party, challenging John McCain's eligibility to serve as president. According to the complaint, McCain is not a "natural born Citizen" because he was born in the Panama Canal Zone (to American parents). Thus, McCain is not eligible to hold the office of President under Article II, § 1 of the Constitution. To review the entire complaint, see here (PDF).

The Northern California federal district court dismissed this case on the grounds that Mr. Robinson lacks standing to sue.

According to the court, the Constitution vests Congress -- not individual voters, or even opposing candidates -- with the final authority re: the qualifications of the Presidency.:

Article II prescribes that each state shall appoint, in the manner directed by the state’s legislature, the number of presidential electors to which it is constitutionally entitled. The Twelfth Amendment prescribes the manner in which the electors appointed by the states shall in turn elect the president:

“[t]he electors shall meet in their respective states and vote by ballot for President and Vice-President . . . and they shall . . . transmit [their votes] sealed to the seat of the government of the United States, directed to the President of the Senate; — The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”

Federal legislation further details the process for counting electoral votes in Congress. 3 U.S.C. 15. Section 15 directs that Congress shall be in session on the appropriate day to count the electoral votes, with the President of the Senate presiding. It directs that designated individuals shall open, count and record the electoral votes, and then present the results to the President of the Senate, who shall then “announce the state of the vote.” Ibid. The statute provides a mechanism for objections then to be registered and resolved:

“[e]very objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made . . . shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision.”

Ibid. The Twentieth Amendment further provides,

“if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be elected, and such person shall act accordingly until a President or Vice President shall have qualified.”

It is clear that mechanisms exist under the Twelfth Amendment and 3 U.S.C. 15 for any challenge to any candidate to be ventilated when electoral votes are counted, and that the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify. Issues regarding qualifications for president are quintessentially suited to the foregoing process. Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review — if any — should occur only after the electoral and Congressional processes have run their course. Texas v. United States, 523 U.S. 296, 300–02 (1998)."

Hollander v. McCain et al, Civil No. 08-cv-99-JL (N.H. D.Ct.).

As with Robinson, the Hollander, plaintiff also challenged Sen. McCain's eligibility to serve as President of the United States, due to his birth in the Panama Canal Zone (to American parents). However, Hollander filed the case on his own behalf as a citizen/qualifed voter of the United States. To review the entire complaint, see here (PDF).

The New Hampshire federal district court dismissed this case on the grounds that Mr. Hollander lacks standing to sue. As the court noted, "So-called Article III standing has three requirements: (1) the plaintiff has suffered an injury in fact, (2) that injury bears a causal connection to the defendant s challenged conduct, and (3) a favorable judicial decision will likely provide the plaintiff with redress from that injury.

The court recognized that "a candidate or his political party has standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on the theory that doing so hurts the candidate's or party's own chances of prevailing in the election." Id. at 11.

However, the court also recognized that "that notion of "competitive standing" has never been extended to voters challenging the eligibility of a particular candidate." Id.. Thus, the court continued:

"So voters have no standing to complain about the participation of an ineligible candidate in an election, even if it results in the siphoning of votes away from an eligible candidate they prefer. See id. As Gottlieb reasons, only the eligible candidate, or his or her political party, can claim standing based on that injury. ***McCain's candidacy for the presidency, whatever his eligibility, is "hardly a restriction on voters' rights" because it in no way prevents them from voting for somebody else. In fact, Hollander alleges that he did just that in the New Hampshire Republican primary."

After discussion (and rejection) of other standing claims, the court concluded:

"... Hollander remains free to cast his vote for any candidate he considers eligible, including by writing in whichever Republican candidate he believes should be nominated instead of McCain, and to have that vote counted just as much as those cast for the party's official nominee, so his right to the franchise remains intact. See Reynolds v. Sims, 377 U.S. 533, 555 (1964) (defining right as "to vote freely for the candidate of one's choice" without "debasement or dilution of the weight of a citizen's vote"). Difficult choices on Election Day do not translate into judicially cognizable injuries.

This is not to demean the sincerity of Hollander's challenge to McCain's eligibility for the presidency; as discussed supra Part II, that challenge has yet to be definitively settled, and, as a number of commentators have concluded, arguably cannot be without a constitutional amendment. What is settled, however, is that an individual voter like Hollander lacks standing to raise that challenge in the federal courts."